Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 495

IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
SARE Shelters Project Pvt. Ltd Sare Homes Project Office, Crescent Parc Dewy Terraces Residential Complex Sowbhagya Vijaym Nagar, Thiruporur, Chengalpattu – Appellant
Versus
SARE SQUIRES Sare Homes Crescent Parc Dewy Terraces OMR Road Project Sowbhagya Vijaym Nagar, Thiruporur, Chengalpattu Dist & Another – Respondent
C.M.S.A.No. 27 of 2020
Decided On : 16-02-2021

Advocates Appeared:
For the Appellants :A. Priyadarshini, Advocate.
For the Respondents:R1, R. Singaravelan, Senior Counsel, I. Saddam Hussain, R2, S. Maheshkumar, Advocates.

The completion certificate issued must be strictly in accordance with the sanctioned plan and specifications, and the responsibilities of the promoter include providing and maintaining essential services. The completion must be in all respects and in accordance with the contract between the parties, and any certificate issued without proper inspection or not in consonance with the Act cannot be considered for grant of exclusion under the RERA Act.

Headnote:
RERA Act - Interpretation of Section 3(2)(b) - Summary of Acts and Sections: Section 3(2)(b), Section 2(q), Section 2(n), Section 2(z), Section 2(zb), Section 2(t), Section 2(w), Section 11(4) - The court discussed the interpretation of Section 3(2)(b) of the RERA Act and the validity of the completion certificate issued by the Executive Officer, Town Panchayat. The court emphasized the need for completion certificates to be issued in accordance with the sanctioned plan and specifications, and the responsibilities of the promoter to provide and maintain essential services. The court also highlighted the definitions of common areas, immovable property, and internal development works under the RERA Act. The judgment concluded that the completion certificate issued was improper and not in consonance with the Act, and therefore, the application/complaint filed by the respondents/apartment owners association is maintainable under the provisions of the RERA Act, 2016.
Fact of the Case:

The case involved a Civil Miscellaneous Second Appeal challenging the correctness of the order of the Tamil Nadu Real Estate Appellate Tribunal, which interpreted Section 3(2)(b) of the RERA Act. The appellant, a property developer, argued that the completion certificate issued for the project exempted them from the provisions of the RERA Act. The respondents, an apartment owners association, contended that the project was not completed as promised and lacked basic amenities, causing mental agony to the purchasers.
Finding of the Court:

The court found that the completion certificate issued by the Executive Officer, Town Panchayat was improper and not in consonance with the RERA Act. The court held that the application/complaint filed by the respondents/apartment owners association is maintainable under the provisions of the RERA Act, 2016. The Regulatory Authority was directed to adjudicate the issues on merits and pass speaking final orders within three months.
Issues: The main issue was the interpretation of Section 3(2)(b) of the RERA Act and the validity of the completion certificate. Additionally, the court addressed the responsibilities of the promoter, the definition of common areas, immovable property, and internal development works under the RERA Act.
Ratio Decidendi: The court's decision was based on the finding that the completion certificate issued was improper and not in consonance with the RERA Act, rendering the application/complaint filed by the respondents/apartment owners association maintainable under the provisions of the RERA Act, 2016.
Final Decision: The Civil Miscellaneous Second Appeal was dismissed, and the Regulatory Authority was directed to adjudicate the issues on merits and pass speaking final orders within three months.

JUDGMENT :

(Prayer: Civil Miscellaneous Second Appeal filed under Section 58 of the RERA Act 2016 r/w Section 100 of C.P.C to set aside the impugned order dated 09.09.2020 in Appeal No.58/2019 passed by the learned Tamil Nadu Real Estate Appellate Tribunal [TNREAT] of reversing the order dated 12.06.2019 passed by the learned Tamil Nadu Real Estate Regulatory Authority (TNRERA) in Complaint No.212 of 2019 and pass an order of confirming the order dated 12.06.2019 passed by the learned Tamil Nadu Real Estate Regulatory Authority (TNRERA) in Complaint No.212/2018 by allowing this appeal with costs throughout.

The Civil Miscellaneous Second Appeal is filed under Section 58 of the Tamil Nadu Real Estate (Regulation and Development) Act 2016, challenging the correctness of the order of the Tamil Nadu Real Estate Appellate Tribunal dated 09.09.2020 in Appeal No.58 of 2019.

2. The learned counsel appearing for the appellant mainly raised the substantial question of law by holding that the Appellate Tribunal erroneously interpreted Section 3(2)(b) of the RERA act by extending the jurisdiction which is otherwise not conferred under the act in respect of buildings already completed.

3. The Original Authority under the Act held that the petition filed by the owner's Association is not maintainable in view of the fact that the completion certificate was issued by the Authority. The Appellate Tribunal held that the completion certificate issued is improper and not in consonance with the provisions of the act. Therefore, for all purposes, the jurisdiction under the Act is not ousted and still, the project is to be construed as on-going project and therefore, the apartment owners are entitled to insist for registration under the RERA Act and file an application before the authority for re-dressal of their grievances under the provisions of the Act. The Appellate Tribunal further issued a direction to the Original Authority under the Act to adjudicate the issues on merits with reference to evidence and dispose of the same within a period of three months from the date of the order.

4. The learned counsel appearing for the appellant contended that the appellant is the property developer and they have developed the property by purchasing 793 plots from the original owners and accordingly, constructed flats as well as villas in the purchased lands. It is contended that the building sanction was properly approved by the competent authority and the construction was completed in all respects as per the plan approved and therefore, there is no defect or infirmity as such. The completion certificate was issued by the Executive Officer, Thirupporur Town Panchayat in the year 2014 itself. Therefore, the appellant is not coming under the purview of the provisions of the RERA Act, as far as the project in question is concerned. The learned counsel appearing for the appellant solicited the attention of this Court with reference to Section 3(2)(b) of the Act, which enumerates that "where the promoter has received completion certificate for a real estate prior to commencement of the Act, then no registration of real estate is required". Relying on the said provision, the learned counsel appearing for the appellant is of the opinion that the completion certificate was duly obtained from the Executive Officer, Thiruporur Town Panchayat and the possession was also handed over to the bona fide purchasers. Thus, the question of registration under the RERA Act does not arise at all. Therefore, the very application/complaint filed by the flat owner's association before the competent authority under the RERA Act is not maintainable. It is contended that the competent authority under the Act rightly interpreted Section 3(2)(b) of the act and rejected the application/complaint as not maintainable. The Appellate Tribunal has not considered the fact that the completion certificate was issued by the Competent Authority under the Town and Country Planning Act. Therefore, the a

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